(Conjoined Appeals)

Grieves Appellant) v. F T Everard & Sons and others (Respondents)

[2007] UKHL 39

LORD HOFFMANN

My Lords,

Summary

1. The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.

2. Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk.

The earlier rulings

3. In the 1980s the actionability of pleural plaques was considered in three decisions at first instance. In all three cases the judges found in favour of the plaintiffs. But their reasoning was not altogether consistent. The first case was Church v Ministry of Defence (1984) 134 NLJ 623, an action by a fitter who had until 1954 worked with asbestos in the naval dockyard at Chatham. A routine X-ray in 1980 revealed pleural plaques. Peter Pain J said (at p. 6) that it was "an error to treat the pleural plaques on their own." There was, he said, damage caused "by the asbestos passing through the lungs and causing the plaques to form." Adding that to the plaques themselves, it was not damage "so minor that the law should disregard it."

4. A month later Otton J gave judgment in a similar case (Sykes v Ministry of Defence The Times, 23 March 1984). The plaintiff had worked with asbestos in the naval dockyard at Portsmouth. The judge was referred to the decision of Peter Pain J in the Church case but his reasoning was not quite the same. In the opinion of Otton J, there was no need to add anything to the plaques to produce compensatable damage. It was enough that there had been a "definite change in the structure of the pleura". That gave the plaintiff a cause of action and therefore, in calculating the damages, one could take into account the risk of other diseases and the plaintiff's anxiety. As the judge awarded a global sum of £1,500 damages for "the three elements of physical damage, anxiety and the risks of further complications", he did not have to explain how he would have calculated damages for the symptomless plaques alone.

5. Patterson v Ministry of Defence [1987] CLY 1194 was another similar case from the naval dockyard at Chatham. Simon Brown J did not accept that a "symptom-free physiological change" such as a plaque was an actionable injury. If Otton J had decided the contrary, he disagreed. But the plaques together with the risk of future disease and anxiety could add up to a cause of action. The reasoning of Simon Brown J was therefore based upon what was called, in argument before your Lordships, a theory of aggregation. The proposition was that a physiological change which is not compensatable damage can be aggregated with risk and anxiety (neither of which would by themselves give rise to a cause of action) to create a cause of action.

6. Since these decisions, claims have regularly been settled on the basis that pleural plaques are actionable injury. But now the insurers have decided to challenge the practice. Ten test cases were selected for trial before Holland J, who also found that the plaques were actionable. In seven cases the insurers appealed to the Court of Appeal, which reversed the decision of the judge. Four of the claimants now appeal to your Lordships' House. In order to decide the point, it is necessary to go back to first principles.

The concept of actionable damage

7. Some causes of action arise without proof of damage. Trespass and breach of contract are examples. Proof of the trespass or breach of contract is enough to found a cause of action. If no actual damage is proved, the claimant is entitled to nominal damages. But a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one's health or capability.

8. How much worse off must one be? An action for compensation should not be set in motion on account of a trivial injury. De minimis non curat lex. But whether an injury is sufficiently serious to found a claim for compensation or too trivial to justify a remedy is a question of degree. Because people do not often go to the trouble of bringing actions to recover damages for trivial injuries, the question of how trivial is trivial has seldom arisen directly. It has however arisen in connection with the Limitation Act, under which the primary rule is that time runs from the date on which the cause of action accrues. In an action for negligence, that means the date upon which the claimant suffered damage which cannot be characterised as trivial. To identify that moment was the vital question in Cartledge v E Jopling & Sons Ltd [1963] AC 758, in which the employees had suffered death or serious injury from damage to their lungs caused by exposure to fragmented silica. At a date earlier than the commencement of the limitation period their lungs had suffered damage which would have been visible upon an X-ray examination, reduced their lung capacity in a way which would show itself in cases of unusual exertion, might advance without further inhalation, made them more vulnerable to tuberculosis or bronchitis and reduced their expectation of life. But in normal life the damage produced no symptoms and they were unaware of it. The House of Lords affirmed the view of the trial judge and the Court of Appeal that a cause of action had arisen and the claims (as the law then stood) were statute-barred.

9. The members of the Court of Appeal and the House of Lords used slightly different words to express the degree of injury which must have been suffered. In the Court of Appeal ([1962] 1 QB 189) Harman LJ spoke (at p 199) of loss or damage "not being insignificant" and Pearson LJ said (at p 208) that the cause of action accrues when "the plaintiff concerned has suffered serious harm". In the House of Lords ([1963] AC 758) Lord Reid said (at pp 771-772) that the cause of action accrues when the wrongful act has caused personal injury "beyond what can be regarded as negligible". Lord Evershed (at p 774) spoke of "real damage as distinct from purely minimal damage". Lord Pearce (with whom all the rest of their Lordships agreed) said (at p 779):

"It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onset of disease he may suffer from his hidden impairment tells in favour of the damage being substantial."

Are pleural plaques actionable damage?

10. Holland J found that the plaques in themselves were not damage which could found a cause of action. He said (at para 80a):

"I start by rejecting any notion that pleural plaques per se can found a cause of action. I am not satisfied that for forensic purposes they can be categorised as a 'disease' nor as an 'impairment of physical condition'. This whole forensic exercise arises because for practical purposes there is no disease, nor is there any impairment of physical condition. If I am wrong, then, the expert evidence as to their significance points (as is in effect, conceded) to them being disregarded as 'de minimis'. I do not think that that status can be enhanced by associating with such, the risk of onset of asbestos related symptomatic conditions as arise not from the plaques per se but from the history starting with the initial exposure - still less do I think that that status can be altered by invoking anxiety arising out of the now articulated risks."

11. This finding of fact is in my opinion unassailable. As the judge noted, the point was conceded by the claimants, who preferred to rely upon the aggregation theory adopted by Simon Brown J in Patterson v Ministry of Defence. The same concession was made in the Court of Appeal but withdrawn in the House of Lords. If the case lay on the borderline, I would have thought that the judge's finding was open to him on the evidence and should not be disturbed. But this was not a borderline case and I do not see how it was open to the judge, on the evidence, to come to any other conclusion. It was not merely that the plaques caused no immediate symptoms. That was also the case in Cartledge v E Jopling & Sons Ltd [1963] AC 758. The important point was that, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of the claimants to other diseases or shorten their expectation of life. They had no effect upon their health at all. As the judge put it at para 64:

"the identification of pleural plaques has an 'evidential' rather than a 'substantive' significance. Thus, their existence confirms the significant permanent physical penetration by asbestos fibres but does not add in any way to the resultant disabilities, actual or prospective. It is with that confirmation to hand that the physician is able to make risk assessments that are based upon the level of exposure and the history - risk assessments that do not stem from, nor are influenced by the plaques but which flow from the now evidenced initial exposure. Further, it is not the plaques per se that engender anxiety (save to the unforeseeably irrational); it is again the now evidenced internal presence of asbestos and the risk assessments arising from such."

The aggregation theory

12. If the pleural plaques are not in themselves damage, do they become damage when aggregated with the risk which they evidence or the anxiety which that risk causes? In principle, neither the risk of future injury nor anxiety at the prospect of future injury is actionable. These propositions are established by the decisions of the House in Gregg v Scott [2005] 2 AC 176 and Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 respectively. How then can they be relied upon to create a cause of action which would not otherwise exist?

13. The appellants' argument is based upon the common law rule that if a claimant has suffered actionable personal injury as a result of the defendant's breach of duty, he can and must claim damages in the same action for all the damage which he has suffered or will suffer in consequence of that breach of duty. As Bowen LJ said in Brunsden v Humphrey (1884) 14 QBD 141, 148:

"Nobody can doubt that if the plaintiff had recovered any damages for injury to his person, he could not have maintained a further action for fresh bodily injuries caused by the same act of negligence, merely because they had been discovered or developed subsequently."

14. This "single action rule" is very old and for the protection of defendants. Coke said that it was based upon the maxim interest rei publicae ut sit finis litium, "otherwise great oppression might be done under colour and pretence of law": see Bowen LJ at p 147. A defendant should not have to answer more than once for the consequences of the same act. A corollary of the rule is that if a claimant does have a cause of action, he may recover damages for the risk that he may suffer further injury in consequence of the same act of negligence, even though (under the principle in Gregg v Scott), such risk would not be independently actionable. There are also cases which suggest that he may be able to recover damages for anxiety consequent upon an actionable injury. But recovery is predicated upon the existence of actionable injury. There is nothing to suggest that a claimant can rely upon the single action rule to sue in circumstances in which he does not have a cause of action in the first place.

15. The rule was modified for personal injury actions by section 32A of the Supreme Court Act 1981, inserted by section 6(1) of the Administration of Justice Act 1982:

"32A.  (1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.

(2) as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person

(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and

(b) further damages at a future date if he develops the disease or suffers the deterioration."

16. This provision allows a claimant to elect for an award of provisional damages for the injury which he has already suffered and enables him to avoid having to quantify his damages for the chance of developing further injury in the future; a calculation which is likely to result in his being either undercompensated (if the injury occurs) or overcompensated (if it does not). Most (though not all) of the claimants in these proceedings elected for provisional damages. But the statute does not support the aggregation theory. On the contrary, its insistence that provisional damages can be obtained only when there is a chance that a serious disease will develop "as a result of the act or omission which gave rise to the cause of action" makes it clear that it applies only where the claimant has a cause of action.

The judgment of the Court of Appeal

17. For these reasons I would reject the aggregation theory. The majority in the Court of Appeal, who also rejected it, placed some emphasis upon policy arguments of a consequentialist nature, based upon predictions of how people would behave if they could sue for pleural plaques. I am bound to say that some of these seemed to me rather speculative and I am inclined to agree with Smith LJ who said in her dissenting judgment ([2006] ICR 1458, 1492, para 112) that "the question can and should be answered by the application of established legal principle to a new factual situation". But I respectfully disagree with Smith LJ about that principle, which is, in my opinion, that in order to sue for personal injury you need a cause of action and that symptomless bodily changes with no foreseeable consequences, the risk of a disease which is not consequent upon those changes and anxiety about that risk are not, individually or collectively, damage giving rise to a cause of action.

18. Smith LJ said that pleural plaques amounted to "an injury". She gave two reasons: first, in rare cases plaques might (on account of the position in which they developed) cause symptoms. In such a case the symptoms are not the injury. It is the plaque. That shows that the plaque is an injury and it must be an injury whether it causes symptoms or not. Similarly, the plaque is a lesion to the pleura. A lesion to the body, for example, a disfiguring scar, would be a compensatable injury. That shows that a lesion is an injury.

19. It seems to me, with respect, that Smith LJ asked herself the wrong question. One is not concerned with whether the plaque is in some sense "injury" or (as she went on to decide) a "disease". The question is whether the claimant has suffered damage. That means: is he appreciably worse off on account of having plaques? The rare victim whose plaques are causing symptoms is worse off on that account. Likewise, the man with the disfiguring lesion is worse off because he is disfigured. In the usual case, however (including those of all the claimants in these proceedings) the plaques have no effect. They have not caused damage.

20. Smith LJ also found support for the aggregation theory in section 32A of the Supreme Court Act 1981, to which I have already referred. She said (at p 1497, para 133):

"In my view, the wording of section 32A is consistent only with the proposition that a claimant has only one cause of action for all personal injury consequences of a wrongful act or omission. The wording of the section is not consistent with the notion that the same exposure to asbestos can and does give rise to separate torts in respect of each consequence. Because he has only one cause of action, as soon as the claimant knows that he has one personal injury consequence, he must sue for all such possible consequences. Under section 32A, he is able to defer the assessment of that part of his damages which relate to future risks, instead of having to accept them now, imperfectly assessed, as he was required to do at common law. Whether he chooses a provisional or final award is a matter for him".

21. That seems to me undoubtedly correct. But she then went on to say:

"The important point is that, because he has only one cause of action, his damage must include the risks that other serious conditions might eventuate. Therefore, both the existing condition and the future risks must be brought into account when the judge is considering whether the damage is more than minimal."

22. It is the last "therefore" that seems to me, with respect, to precede a non sequitur. It is true that if he has a cause of action, his damage must include the risks that other serious conditions might eventuate. But that does not mean that such risks are taken into account in deciding whether he has a cause of action, that is to say, whether he has suffered (and not merely may suffer) more than minimal damage.

Psychiatric illness

23. I would, for the reasons so far discussed, dismiss the appeals of all the claimants except Mr Grieves. His case is different because he suffered not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. Unlike the kind of anxiety considered in Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65, psychiatric illness does constitute damage for the purpose of founding an action in negligence. So the question in Mr Grieves's case is a different one: not whether he suffered damage, but whether the defendants owed him a duty of care in respect of psychiatric illness caused by his anxiety at the risk of a future illness.

24. Mr Grieves is suing two defendants: a company by whom he was employed as a maintenance engineer between 1961 and 1964 and another by which he was employed between 1964 and 1969. Both admit that they negligently exposed him to asbestos dust. He developed his psychiatric illness as a result of an X-ray examination in 2000. The question of whether he was owed a duty of care in respect of that illness must in my opinion by answered by reference to the principles stated by Hale LJ in her lucid and comprehensive judgment in Hatton v Sutherland [2002] ICR 613, which were approved by this House in Barber v Somerset County Council [2004] 1 WLR 1089. The judgment was concerned with psychiatric injury caused by subjecting an employee to occupational stress, but the general principles are in my opinion applicable to psychiatric injury caused by any breach of duty on the part of the employer.

25. Hale LJ said (at p 624, para 23) that "the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable." She rejected the general applicability of the test of whether psychiatric injury was foreseeable in a person of "ordinary fortitude" because an employer's duty was owed to each individual employee and not an undifferentiated member of the public. An employer may know (or it may be that he should know) of a particular vulnerability in an employee. In that case, he has a duty to treat him with appropriate care. On the other hand, in the absence of some particular problem or vulnerability, the employer was entitled to assume (in a case of occupational stress) that the employee is "up to the normal pressures of the job". Applied to the broader question of psychiatric illness, that means that in the absence of contrary information, the employer is entitled to assume that his employees are persons of ordinary fortitude.